In re M.R.F.

378 N.C. 638

862 S.E.2d 758

In the MATTER OF: M.R.F.

No. 83A21

Supreme Court of North Carolina.

Filed September 24, 2021

Donald H. Barton, Brevard, for petitioner-appellee.

No brief for appellee Guardian ad Litem.

Anné C. Wright, Boone, for respondent-appellant father.

MORGAN, Justice.

¶ 1 Respondent-father appeals from the trial court's order terminating his parental rights to "Margot,"¹ a minor child born in May 2014. The order also terminated the parental rights of Margot's mother, but she is not a party to this appeal. We reverse the trial court's order as to respondent-father.

I. Factual and Procedural Background

¶ 2 Petitioner is Margot's maternal grandmother. On 30 October 2019, petitioner filed a petition to terminate the parental rights of both of Margot's parents. As the statutory grounds for termination, petitioner alleged the following: respondents willfully left Margot in a placement outside the home for more than twelve months without making reasonable progress to correct the conditions leading to Margot's removal, see N.C.G.S. § 7B-1111(a)(2) (2019) ; respondents "willfully failed without justification to pay for the care, support and education of the minor child in violation of N.C.G.S. [§] 7B-1111(a)(4)"; and respondent-father "has not undertaken any of those actions required of him" to legitimate the child under N.C.G.S. § 7B-1111(a)(5). Respondent-father was served with the petition and with an alias and pluries summons on 31 January 2020. On 19 February 2020, respondent-father filed a verified answer denying many of the allegations in the petition.

¶ 3 The trial court held a hearing on the petition on 14 October 2020. Petitioner testified and introduced a copy of Margot's birth certificate. Respondent-father did not call any witnesses at the hearing but presented federal court records reflecting his incarceration in federal prison.

¶ 4 In its "Order Terminating Parental Rights" entered on 3 November 2020, the trial court concluded that grounds existed to terminate respondent-father's parental rights pursuant to N.C.G.S. § 7B-1111(a)(2), (4), and (5).² The trial court further concluded that it was in Margot's best interests that respondent-father's parental rights be terminated. See N.C.G.S. § 7B-1110(a) (2019). Respondent-father filed timely notice of appeal from the termination of parental rights order.

II. Arguments on Appeal

¶ 5 On appeal, respondent-father contends that the trial court erred by failing to state the standard of proof that it applied in finding the facts to support the trial court's adjudication of grounds for terminating respondent-father's parental rights under N.C.G.S. § 7B-1111(a)(2), (4)–(5). See N.C.G.S. § 7B-1109(f) (2019) ("[A]ll findings of fact shall be based on clear, cogent, and convincing evidence."). He further claims that petitioner's evidence and the trial court's findings of fact are insufficient to establish any of the three adjudicated grounds for termination. We agree with respondent-father's assertions on all points and reverse the termination of parental rights order.

¶ 6 A proceeding for the termination of parental rights consists of

two stages, beginning with an adjudicatory determination. At the adjudicatory stage, the petitioner bears the burden of proving by clear, cogent, and convincing evidence the existence of one or more grounds for termination under section 7B-1111(a) of the General Statutes. If a trial court finds one or more grounds to terminate parental rights under N.C.G.S. § 7B-1111(a), it then proceeds to the dispositional stage at which it determines whether terminating the parent's rights is in the juvenile's best interest.

In re K.C.T. , 375 N.C. 592, 595, 850 S.E.2d 330 (2020) (extraneity omitted).

¶ 7 Respondent-father confines his appeal to the trial court's ruling on adjudication. "We review a [trial] court's adjudication ‘to determine whether the findings are supported by clear, cogent and convincing evidence and the findings support the conclusions of law.’ " In re N.P. , 374 N.C. 61, 62–63, 839 S.E.2d 801 (2020) (quoting In re Montgomery , 311 N.C. 101, 111, 316 S.E.2d 246 (1984) ). "[T]he issue of whether a trial court's adjudicatory findings of fact support its conclusion of law that grounds existed to terminate parental rights pursuant to N.C.G.S. § 7B-1111(a)" is reviewed de novo by the appellate court. In re T.M.L. , 377 N.C. 369, 2021-NCSC-55, ¶ 15, 856 S.E.2d 785. "Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the [trial court]." Id. (alteration in original) (quoting In re C.V.D.C. , 374 N.C. 525, 530, 843 S.E.2d 202 (2020) ).

A. Standard of Proof

¶ 8 As respondent-father notes, "[t]he trial court's order fails to identify" the standard of proof under which the trial court made adjudicatory findings of fact. He contends that the trial court's order "must be vacated" as a result of this omission.

¶ 9 Section 7B-1109 establishes the requirements of an adjudicatory hearing in a termination of parental rights proceeding and provides that "[t]he burden in such proceedings shall be upon the petitioner or movant and all findings of fact shall be based on clear, cogent, and convincing evidence." N.C.G.S. § 7B-1109(f). Although subsection 7B-1109(f) "merely specifies a particular standard of proof in termination-of-parental-rights proceedings," In re B.L.H. , 376 N.C. 118, 123, 852 S.E.2d 91 (2020), this Court has held that the statute "implicitly requires a trial court to announce the standard of proof which they are applying on the record in a termination-of-parental-rights hearing. To hold otherwise would make the provision effectively unenforceable and would defeat the purposes of the statutory scheme," id. at 126, 852 S.E.2d 91 ; see also N.C.G.S. § 7B-1109(e) (requiring trial court to "take evidence, find the facts , and ... adjudicate the existence or nonexistence of any of the circumstances set forth in G.S. 7B-1111 which authorize the termination of parental rights of the respondent" (emphasis added)).

¶ 10 Contrary to respondent-father's argument on appeal, "the trial court satisfies the announcement requirement of N.C.G.S. § 7B-1109(f) so long as it announces the ‘clear, cogent, and convincing’ standard of proof either in making findings of fact in the written termination order or in making such findings in open court." In re B.L.H. , 376 N.C. at 126, 852 S.E.2d 91 ("This rule ensures our appellate courts can determine whether the correct standard of proof was applied from the record on appeal without an undue formalism not reflected in the statutory language."). In the present case, however, the trial court failed to announce the standard of proof for its adjudicatory findings either in open court or in its written order. Therefore, the trial court failed to comply with the statutory mandate.

¶ 11 Petitioner concedes that the trial court failed to articulate the applicable standard of proof but insists that "there was overwhelming evidence leading to the entitlement of [petitioner] to an order terminating parental rights and that the evidence obviously met the clear and convincing standard." Petitioner argues that a remand of this case to the trial court merely to have the tribunal announce the "clear, cogent, and convincing" evidentiary standard of N.C.G.S. § 7B-1109(f) will have no effect on the ultimate outcome of the case. As elucidated at length hereafter, we are not persuaded by petitioner's argument.

¶ 12 When the record reflects that "there was competent evidence before the trial court to support a finding that any of the [adjudicated] statutory grounds existed for termination of parental rights[,]" the appropriate remedy for the trial court's noncompliance with N.C.G.S. § 7B-1109(f) is to vacate the trial court's order and to remand the case for the entry of new findings of fact and conclusions of law based on the clear, cogent, and convincing evidence standard. In re Church , 136 N.C. App. 654, 658, 525 S.E.2d 478 (2000) ("[T]he case must be remanded for the trial court to determine whether the evidence satisfies the required standard of proof ...."). A review of the record in the instant case, however, shows that petitioner failed to adduce sufficient evidence to sustain any of the alleged grounds for terminating respondent-father's parental rights. In light of not only the failure of the trial court to announce the standard of proof which it was applying to its findings of fact but also due to petitioner's failure to present sufficient evidence to support any of the alleged grounds for the termination of the parental rights of respondent-father, we are compelled to simply, without remand , reverse the trial court's order. See Arnold v. Ray Charles Enters., Inc. , 264 N.C. 92, 99, 141 S.E.2d 14 (1965) ("To remand this case for further findings, however, when defendants, the parties upon whom rests the burden of proof here, have failed to offer any evidence bearing upon the point, would be futile."); Cnty. of Durham v. Hodges , 257 N.C. App. 288, 298, 809 S.E.2d 317 (2018) ("Since there is no evidence to support the required findings of fact, we need not remand for additional findings of fact. Instead, we reverse ....").

B. Adjudication under N.C.G.S. § 7B-1111(a)(2)

¶ 13 Respondent-father argues that the trial court erred in adjudicating grounds for terminating his parental rights pursuant to N.C.G.S. § 7B-1111(a)(2). He asserts that the trial court's adjudication lacks "indispensable supporting findings of fact." Respondent-father further contends that crucial findings of fact entered by the trial court are unsupported by the evidence.

¶ 14 An adjudication under N.C.G.S. § 7B-1111(a)(2)

requires the trial court to perform a two-step analysis where it must determine by clear, cogent, and convincing evidence whether (1) a child has been willfully left by the parent in foster care or placement outside the home for over twelve months, and (2) the

...